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Brady v. Raines

September 27, 2007

J.V. BRADY, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR FOR THE ESTATE OF JANET LEE BRADY, DECEASED PLAINTIFFS
v.
HUGH RAINES, INDIVIDUALLY AND THE ESTATE OF HUGH RAINES, DECEASED, ET AL. DEFENDANTS



The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge

ORDER

Pending is Defendant's Motion To Dismiss Claim Against Hugh Raines, Individually (Doc. No.11). Plaintiff has not responded and the time for doing so has passed. Defendant's Motion is GRANTED.

Plaintiff was killed in an airplane crash; Defendant Raines was the pilot of the plane.*fn1 Plaintiff is an Arkansas resident.*fn2 Defendant is a resident of Texas.*fn3 Plaintiff's Complaint named both Defendant's estate and Defendant individually.*fn4

The capacity of an individual acting in a representative capacity to be sued is determined by the law of the state where the district court is held.*fn5 If an alleged wrong-doer dies before a plaintiff brings a wrongful death action, the deceased's personal representative -- not the deceased -- should be named as defendant in the action.*fn6

The capacity of Defendant to be sued is determined by Arkansas law. Because Defendant Raines, as an individual, died before the action commenced, it is proper for his estate to be named as Defendant in this action rather than Raines individually.

Defendant's Motion To Dismiss Claim Against Hugh Raines, Individually, is GRANTED.

IT IS SO ORDERED this 27th day of ...


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